lwempisi general co ltd others vs national bank of commerce 2018 tzhccomd 75 4 june 2018
- Citation
- lwempisi general co ltd others vs national bank of commerce 2018 tzhccomd 75 4 june 2018
- Status
- Judgment
- Jurisdiction
- Tanzania
- Court
- TZHCCOMD
- Decision
- 4 June 2018
- Posture
- Miscellaneous Commercial Application / Ruling on Jurisdiction
- Language
- English
More details
- Court
- TZHCCOMD
- Decision
- 4 June 2018
- Posture
- Miscellaneous Commercial Application / Ruling on Jurisdiction
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court lacks jurisdiction to determine the application; only the mediator judge is empowered under Rule 37(2).
Court disposition
Application not determined due to lack of jurisdiction.
Orders
- All factual or legal issues to be dealt with by the mediator judge.
02
Material facts
Parties
LWEMPISI GENERAL CO. LTD.
ApplicantCHARLES KAHATANO LWEMPISI
ApplicantJOSEPH ISHENGOMA BYEKWASO
ApplicantRICHARD KWEYAMBA
ApplicantJOSEPH RUGALABAMU
ApplicantGETRUDE CHARLES
ApplicantMBELWA MGANGA CHARLES
ApplicantTHE NATIONAL BANK OF COMMERCE
Respondent03
Procedural history
Posture
Miscellaneous Commercial Application / Ruling on Jurisdiction
04
Questions and positions
Legal issues
- 01
Whether the court has jurisdiction to determine an application under Rule 37(2)
- 02
Implications of conflicting affidavits
Party arguments
- Applicant
- Applicants filed affidavits regarding conversations and communications about mediation dates.
- Respondent
- Respondent filed counter-affidavit disputing applicants' claims about mediation dates.
05
Court’s reasoning
Legal principles
- 01
Rule 37(2)
Only the mediator judge can hear and determine an application under Rule 37(2) of the Rules.
- 02
Section 102(1) Penal Code; Section 22(b) Advocate's Act
Lying on oath may amount to perjury and attract sanctions under the Penal Code and Advocate's Act.
06
Ratio, limits and disposition
Ratio decidendi
The court lacks jurisdiction to determine the application; only the mediator judge is empowered under Rule 37(2).
Obiter and limits
- Affidavit and counter-affidavit suggest one party may be lying on oath, which may amount to perjury and attract sanctions.
Court disposition
Application not determined due to lack of jurisdiction.
- All factual or legal issues to be dealt with by the mediator judge.
Source and reliance status
TZHCCOMD · 4 June 2018
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
TZHCCOMD
Judgment· 4 June 2018
IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION)
AT MWANZA Miscellaneous Commercial Application No. 01 of 2018 1. LWEMPISI GENERAL CO. LTD.
2. CHARLES KAHATANO LWEMPISI 3. JOSEPH ISHENGOMA BYEKWASO 4. RICHARD KWEYAMBA .................. APPLICANTS 5. JOSEPH RUGALABAMU 6. GETRUDE CHARLES 7. MBELWA MGANGA CHARLES Versus
THE NATIONAL BANK OF COMMERCE RESPONDENT
RULING 04th June, 2018 A.R. MRUMA, J. I agree with the learned counsel for the parties that under the provisions of Rule 37(2) which is coached in mandatory terms it is only the mediator judge who can. hear and determine an application made under Rule 37(2) of the Rules. • I note that in this Application counsel for the parties have filed affidavit and counter - affidavit regarding their conversations and communications in respect of the calling of the matter for mediation on specific date(s). Interestingly their affidavit and counter-affidavit suggest one thing; that is to say one of them is lying on oath. Lying on oath may amount to perjury u/s 102(1) which punishable under the penal code. It may also attract sanction u/s 22 (b) of the Advocate's Act. However, as I have no jurisdiction to determine this application, all factual or legal issues that may crop up in this application shall be dealt with by the 2uv- A. R. Mruma
JUDGE 04/06/2018 2
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